Harrison v. Dill
| Decision Date | 06 October 1915 |
| Docket Number | 169. |
| Citation | 86 S.E. 518,169 N.C. 542 |
| Parties | HARRISON v. DILL ET AL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Craven County; Peebles, Judge.
Action by J. M. Harrison against A. T. Dill and J. H. Fisher. A purported consent judgment was entered against both defendants, and the last-named defendant moves to vacate it. From an order granting the motion to him, plaintiff appeals. Affirmed.
This is a motion to set aside a judgment against J. H. Fisher alone purporting to have been rendered at the September term of said court, 1913, by consent. The court finds the following facts:
"(1) The original action was brought to recover back $325 which plaintiff alleged he had paid A. T. Dill for some bank stock which turned out to be worthless, and that he was induced to buy said stock by the false and fraudulent representations of said Dill, backed up by the false and fraudulent representations of defendant Fisher.
(2) That plaintiff was represented by McIver & Nixon, Dill by Guion & Guion, and Fisher by R. O'Hara, who filed for Fisher an answer denying each and every material allegation in the complaint, and the action was continued from term to term until the September term. 1913.
(3) That prior to September term, 1913, Fisher and plaintiff agreed to compromise and settle the case on terms set out in defendant Fisher's petition (to set aside the judgment), and Fisher executed and delivered to plaintiff a bond in the sum of $150 to secure the performance of his part of said agreement. This finding is based upon the verified petition of defendant Fisher not controverted.
(4) That the plaintiff did not comply with his part of said agreement.
(5) That said action was calendared for the September term of said court, but was not reached and tried in its regular order. During the term aforesaid plaintiff's counsel showed O'Hara a consent judgment, which was not signed and O'Hara refused to agree to it, and later the judgment set out in the record was prepared and signed by consent of the plaintiff's counsel and counsel for defendant Dill, but was never submitted to defendant's counsel O'Hara. It was never submitted to defendant Fisher, and he never knew anything of it, until the sheriff came to him with an execution issued on said judgment. That neither O'Hara nor the defendant Fisher assented to said judgment. It would be hard to believe that O'Hara or Fisher would, with a full knowledge of its contents consent to a judgment that let go free A. T. Dill, the chief sinner, according to the allegations of the complaint and who got the $325 and make defendant Fisher pay $325 and costs, when he had received no part thereof. I find that Fisher has, prima facie, a good defense to the action.
Upon the foregoing facts found by me, it is considered and adjudged that said judgment, as to defendant J. H. Fisher, be and the same is hereby set aside and vacated, and the action as to Fisher be replaced on the trial docket. It is considered and adjudged that defendant J. H. Fisher recover of the plaintiff the costs of this motion.
R. B Peebles, Judge Presiding."
The court announced that the former judgment signed by H. W. Whedbee, judge, was set aside, in so far as John H. Fisher was concerned, and plaintiff then moved that, if only part of the judgment was set aside, it should be vacated as a whole. This the court refused to do, and the plaintiff excepted. The judgment of the court was then signed and filed, and the plaintiff again excepted.
In a suit against two, where plaintiff admitted his inability to recover from one and a purported consent judgment was rendered against the other, such judgment may be set aside as to the one without vacating the order in the nature of the nonsuit.
R. B. Nixon and W. D. McIver, both of New Bern, for appellant.
A. D. Ward, of New Bern, for appellees.
WALKER, J. (after stating the facts as above).
The plaintiff has assigned eleven errors, as having been committed by the court in respect to its order setting aside the former judgment of the court, whereas only two exceptions were entered to the order of Judge Peebles at the time it was made. The object of an assignment of error is, not to create a new exception, which was not taken at the hearing, but to select from those which were taken such as the appellant then relies on, after he has given more deliberate consideration to them than may have been possible during the progress of the trial or hearing. The assignment of error, therefore, must be based upon the exception duly taken at the time it was due in the orderly course of procedure, and should coincide with, and not be more extensive than, the exception itself. In other words, no assignment of error will be entertained which has not for its basis an exception taken in apt time. Worley v. Logging Co., 157 N.C. 490, 73 S.E. 107; Bank v. McArthur, 168 N.C. 48, 84 S.E. 39.
But waiving this serious objection to several assignments of error, we will state generally that they are predicated upon the ground that Judge Peebles had found facts contrary to the weight of the evidence, or that he had failed to find facts according to the testimony of certain witnesses for the plaintiff. We could not sustain these assignments of error, if they had been properly framed upon exceptions duly taken, for the reason that we do not pass upon the weight of the testimony or its sufficiency to prove facts; but, in motions of this kind, we are concluded by the findings of the judge, if there was any evidence to support them, and in this case we think that the findings were amply supported by the testimony. We might go further and say, if we could examine the testimony, that the findings are sustained by the greater weight of the testimony. It appears...
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